Comey Faces a Trial … Maybe

Before we go into former FBI Director James Comey’s prospects in some future trial, there are three major issues to consider that go far beyond the man himself. The first is the grand jury system, a deeply flawed mechanism that masquerades as justice. The second is whether Comey will even go on trial.  And the third is the question of Comey’s wrongdoing—whether it was criminal or simply the kind of unethical behavior that corrodes public trust.

The Grand Jury System

Let us begin with the grand jury system. I have long criticized this opaque institution, calling it a “prosecutor’s playground” where the accused has no representation, no ability to present evidence, and no opportunity to challenge the narrative. It is a one-sided affair, designed not to seek truth but to secure indictments.  That is why we have the expression that any prosecutor could “indict a ham sandwich”.  It is not a joke. A mere indictment of an innocent person provides major penalties.  It imposes huge costs, damages reputations and can end careers. 

As I pointed out in previous commentaries, the grand jury system is a cancer on any concept of justice.  It is about prosecutorial leverage.  There is a reason that the United States is only one of two nations in the world to have a grand jury system.  The other is Liberia.  The United Kingdom, Canada, Australia, and New Zealand, have abolished the grand jury system — which originated in England

Will There Be a Comey Trial?

Normally, an indictment leads to a trial – unless there is a plea agreement.  But that may not be the case with Comey.  As is generally the case, defense attorneys will file all sorts of motions asking the court to dismiss the case.  Such efforts are usually futile – but may not be in this case.  There are serious questions as to whether this case has reasonable cause.

Comey attorneys will undoubtedly argue that the case is “selective prosecution” — a nice way of saying prosecutorial abuse. Based on merits, it is a difficult case to prosecute – and the fact that the then-Acting U.S. Attorney for the Eastern District of Virginia Erik Siebert — a Republican Trump appointee — took a pass on pursuing the case raises serious questions.  The fact that he had to be replaced for the case to proceed helps the defense. 

I doubt the case will be dismissed, but it has a better chance than most.

Were Comey’s Actions Criminal?

Whether Comey is guilty of criminal conduct will be determined by a court-of-law sometime in the future – assuming the case goes to trial.  Those on the right and on the left will fight it out between now and then in the court-of-public-opinion.  It will make for great theater – and may even influence future judge and jurors.

But even if the case is dismissed or Comey wins an eventual acquittal, let us not pretend that Comey is innocent of wrongdoing.  Many wrongdoings – most in fact — are not criminal. What we do know about Comey already tells us that he is not innocent of wrongdoing.

His record is riddled with questionable decisions, political maneuvering, professional lapses and a disturbing willingness to bend the rules when it suits his political biases.

His handling of the Hillary Clinton email investigation was a masterclass in self-righteous interference. First, he publicly exonerated Clinton in July 2016 of mishandling classified documents after laying out a damning case of “extreme carelessness”. Then, just days before the election, he reopened the investigation—an act that many believe tipped the scales against Clinton – only to abruptly close it again. Whether you support her or not, Comey’s actions were not those of a neutral professional law enforcement official. They were the actions of a man guilty of professional impropriety.

And then there is Donald Trump. Comey’s dealings with the President were even more troubling. According to his own memos, Comey documented private conversations with Trump to be used against the President in the future.  Rather than confront the President directly or resign in protest, Comey chose to undermine the presidency – essentially joining the partisan Resistance Movement. He leaked information—including classified information –to the press through a friend.  That was a violation of FBI protocol and possibly federal law. His deputy, Andrew McCabe, later confirmed that Comey authorized leaks to the media, despite Comey’s sworn testimony to the contrary. 

By Comey’s own testimony, his leaks were designed to force the naming of a special counsel to investigate what he had to know were bogus accusations of collusion between Russia and the Trump campaign.  The investigation was launched with a phony dossier financed by the Clinton campaign.  It led to a two-year $35 million investigation by Special Counsel Robert Mueller that determined that neither Trump nor anyone associated with his campaign (in fact, no American) was guilty of the accusations.  Comey was using the FBI to undermine a duly elected President of the United States out of political hubris.

There is a question as to whether Comey perjured himself before Congress – although it seems likely he did at that time.  Whether Comey was criminally guilty of a number of crimes in conjunction with Russian collusion accusations is a moot point.  The statute of limitations has already run on those actions.

These are not the actions of a man committed to justice. They are the actions of a bureaucrat playing politics with the truth. Comey’s defenders argue that he was caught in a no-win situation, trying to navigate a toxic political environment. But that’s no excuse. The FBI Director is supposed to rise above politics, not dive headfirst into it. Comey’s behavior—his public pronouncements, his selective leaks, his sanctimonious book tour—reveal a man more interested in his own legacy than the integrity of the Bureau.

Now, with his recent indictment on charges of making more recent false statements to Congress – upon which the statute of limitations has not expired — and obstruction of a congressional proceeding, we face the question: Was it criminal?  Some career prosecutors reportedly opposed the charges, arguing that probable cause was lacking. This only reinforces the concern that the grand jury system is routinely weaponized for political ends or merely serving the personal ambitions of prosecutors.  Not good in either case.

But even if Comey escapes conviction, the damage is done. He has undermined public trust in the FBI, politicized sensitive investigations, and acted with a level of arrogance that should never be tolerated even in public service – where arrogance is common. His defenders claim he did nothing wrong. They are wrong. Comey may not be a criminal in the eyes of the law – a least not yet — but he is guilty of something far more corrosive, betraying the public’s faith in impartial justice. 

Comey is a cautionary tale of what happens when ego replaces ethics, and when institutions designed to protect the public become tools of partisan politics and personal ambition. Whether or not he is convicted, James Comey has already been judged as one of the bad dudes—by the facts, by his own words, and by the legacy he leaves behind.

So, there ‘tis.